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ELCOtherJudicial Review Application (Notice of Motion dated February 28, 2022)· [2022] KEELC 2555 (KLR)

Republic v Attorney General & another; Kathenge & 3 others (Interested Parties); Musyoka Kamusina (Exparte) (Environment and Land Judicial Review Case E002 of 2022) [2022] KEELC 2555 (KLR)

Environment and Land Court
28 June 2022
3,973 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed it can hear challenges to consent orders over land, even where succession cases or pending magistrates' court applications exist.

What this practically means

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Executive summary

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The Interested Parties filed a preliminary objection to the Ex parte Applicant's judicial review Notice of Motion dated February 28, 2022, which sought mandamus, prohibition and certiorari against consent orders recorded on December 2, 2021 and issued December 9, 2021 in Kitui Chief Magistrates Civil Case No. 67 of 2019. That suit, brought by the 1st Interested Party for recovery of Kshs 972,000 arising from the sale of Plot No. 15 Mosa Market, was compromised by a consent order directing handover and transfer of the plot. The Ex parte Applicant, administrator of the estate of Musya Mutua (deceased) under Succession Cause No. 89 of 2019 in which the plot had been awarded to him, was not a party to the suit and alleged the consent order was tainted by illegality and denial of the right to be heard. The Interested Parties argued the court lacked jurisdiction, the dispute concerned succession and ongoing magistrates' court proceedings, the magistrate had exercised judicial (not administrative) functions, and the forum to challenge a consent order is the trial court. The Respondents filed grounds of opposition. Applying Mukisa Biscuit, and relying on Lillian S Caltex, Samuel Kamau Macharia, Karisa Chengo and the Shanzu Magistrate case, the court held that the consent order relates to use, occupation of and title to land under Article 162(2)(b) and Section 13 of the ELC Act; that a pending succession cause or a pending application before the magistrate does not oust its jurisdiction; and that the ELC has supervisory jurisdiction and power to issue prerogative orders under Section 13(7)(b). The preliminary objection was dismissed with costs to the Interested Parties. The substantive judicial review motion remains to be determined.

Key legal issues

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01

Whether the ELC has jurisdiction over judicial review orders relating to a consent order in a magistrates' court case concerning land

Holding

The court has jurisdiction because the consent order relates to use, occupation of and title to land under Article 162(2)(b) and Section 13 of the ELC Act, and the court may issue prerogative orders under Section 13(7)(b).

Reasoning

The court traced its jurisdiction to Article 162(2)(b) and Section 13 of the ELC Act, and its supervisory jurisdiction over subordinate courts. It found the consent order, which transferred title and occupation of a plot, squarely concerns title to and use and occupation of land. All prayers sought (mandamus, prohibition, certiorari) fall within that jurisdiction, which under Section 13(2)(e) and 13(7)(b) is not exhaustive and includes prerogative orders.

p. 7
02

Whether succession proceedings over the same land oust ELC jurisdiction

Holding

They do not; the judicial review application sought no orders relating to the succession cause, and Section 13(2)(e) covers any other dispute relating to environment and land.

Reasoning

Relying on Republic v Senior Principal Magistrate Shanzu & 5 others; Two Thirds Investment Limited (Ex-parte Kalama Said Kalama), the court held that the ELC Act's list of disputes is not conclusive and that the source of proceedings (succession, criminal or otherwise) is irrelevant so long as the dispute touches on land and environment.

p. 8
03

Whether a pending application in the trial court seeking the same reliefs ousts this court's jurisdiction

Holding

It does not; supervisory jurisdiction and the power to issue prerogative orders remain.

Reasoning

The court acknowledged the magistrate's court may deal with the application to set aside the consent order, but held that pendency of such an application does not of itself remove the ELC's supervisory jurisdiction over magistrates' courts or its statutory power to grant prerogative orders under Section 13(7)(b).

p. 8

Legal principles established

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  • The mere fact that land in dispute is the subject matter of a succession cause does not oust the jurisdiction of the Environment and Land Court where the dispute touches on land.
  • The ELC has supervisory jurisdiction over magistrates' courts and power to issue prerogative orders under Section 13(7)(b) of the ELC Act.

Court orders

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  1. 1.The Notice of Preliminary Objection dated March 4, 2022 is dismissed with costs to the Interested Parties

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22, 23, 160(1), 162(2)(b), 165(1)(b), 165(5), 22(3)
  • Civil Procedure Rules 2010Order 53 Rules 1 and 2
  • Fair Administrative Action ActSections 7, 9 and 10, including Section 9(1)
  • Environment and Land Court Act No. 19 of 2011Sections 13(1), 13(2)(e), 13(7)(b)
  • Judicature Act Cap 8Section 6

Cases cited (5)

  • Samuel Kamau Macharia Vs KCB & 2 Others
    (2012) eKLR
  • The Owners of the Motor Vessel “Lillian S” Vs Caltex Oil (Kenya) Ltd
    (1989) KLR 1
  • Mukisa Biscuit Manufacturing Co Ltd vs West End Distributors ltd
    (1969) EA 696
  • Republic –v- Karisa Chengo & 2 Others
    (2017) eKLR
  • Republic v Senior Principal Magistrate Shanzu & 5 others; Two Thirds Investment Limited (Interested Party); Ex-parte Kalama Said Kalama & 40 others
    [2020] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution; Section 13 of the Environment and Land Court Act No. 19 of 2011

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v Attorney General & another; Kathenge & 3 others (Interested Parties); Musyoka Kamusina (Exparte) (Environment and Land Judicial Review Case E002 of 2022) [2022] KEELC 2555 (KLR)", Case Analysis (2022). Judicial Review Application (Notice of Motion dated February 28, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2555/eng@2022-06-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.